This district’s Court of
Appeal yesterday declined to revive a discrimination suit against the city of Los Angeles for disqualifying a
colorblind man from employment as a firefighter.

Div. One ruled in an
unpublished decision that Cory James failed to prove he was qualified for the
job, a necessary prerequisite to establishing a Fair Employment and Housing Act
violation, where he undisputedly failed three separate city-administered color
vision proficiency tests.

The city had offered
James employment as a firefighter after he passed the written and oral exams
for employment, contingent on his passing a medical examination. The
examination involved three successive tests for color vision—the “Titmus
Six-Plate Ishihara Test,” the “Expanded Ishihara Test,” and the PC40 “Color
Naming” Test—and the city’s civil service rules provided that a candidate for a
firefighter position may be disqualified for “[d]eficiency in color perception
of such a nature as to preclude prompt and accurate identification of colors.”

James failed all three
of the exams, but he challenged the city’s medical disqualification of him by
submitting the results of color-vision tests administered by his own
ophthalmologist indicating that he successfully passed the Expanded Ishihara
Test.

The city’s medical board
denied James’ appeal, so he filed suit claiming the city discriminated against
him due to his color-vision deficiency, failed to offer reasonable
accommodations with respect to his disability and failed to engage in an
interactive process to identify those accommodations he should have received.

Los Angeles Superior
Court Judge Ernest M. Hiroshige granted summary judgment in favor of the city,
finding it had declined to hire James because he “failed the minimum
qualifications to be hired,” without regard to whether his color-vision
deficiency constituted a disability under the FEHA.

Writing for the
appellate court, Justice Jeffrey W. Johnson noted that the FEHA provides that
an employer’s decision not to hire a candidate due to a physical handicap or
medical condition constitutes unlawful discrimination. However, he said, an
employer cannot be liable if its decision is based upon a bona fide
occupational qualification where the candidate “is unable to perform his or her
essential duties even with reasonable accommodations, or cannot perform those
duties in a manner that would not endanger his or her health or safety or the
health or safety of others even with reasonable accommodations.”

Johnson explained that
the determination of the essential qualifications for the firefighter job, and
the appropriate objective criteria for meeting those qualifications, were
“unquestionably within the City’s discretion.” As James offered no evidence
that the city’s hiring criteria was defective or improper, Johnson posited, the
color-vision test was a bona fide occupational qualification.

The justice reasoned
that James had raised a question as to whether he could pass one of the
color-vision tests used by the city by presenting evidence that he had passed
it when administered by his ophthalmologist. But he said that did not
demonstrate a triable issue of material fact as to whether or not James was qualified
to be a firefighter.

Johnson commented that
Johnson’s passing of the privately administered Expanded Ishihara Test, did not
“somehow magically wipe[] his slate clean of the three failing results he had
obtained in the City-administered color proficiency tests,” and said “[t]here
was no reason or justification for the Medical Appeal Review Panel to disregard
the reality of James’s failed tests.”

Unless the city’s tests
were unfair or discriminatory in some manner, the city was justified in basing
its hiring decisions on its own color proficiency tests, Johnson said.

Justice Frances
Rothschild joined Johnson in his decision but Justice Victoria G. Chaney
dissented, contending that the evidence James presented—that he could, and did,
attain a passing score on one of the color-vision tests the city used when it
was given by a qualified professional—was sufficient to raise a triable issue
on whether the city fairly and properly administered and scored the test.

Attorneys on the case
were David H. Greenberg and R. Scott Houtz of Greenberg & Rudman, and
Deputy City Attorney Paul L. Winnemore.